The Colorado Court of Appeals issued its opinion in People v. Madison on Thursday, May 3, 2018.

Restitution Agreement.

Madison stole scores of bottles of expensive wine from multiple liquor stores. He pleaded guilty, and the court sentenced him to a two-year term of probation and ordered restitution. As part of the restitution agreement, Madison was permitted to take possession of the stolen property if he paid restitution to the victims within a contractual period of time. (The liquor stores declined to accept the recovered wine because the storage method could not be confirmed, and thus the wine was not marketable.) Madison and the prosecution also entered into an “Evidence Disposition Agreement.” Defendant did not pay the restitution and, five years later, the sheriff’s office moved for an order authorizing it to destroy the stolen property. The motion was granted by the court.

On appeal, Madison argued that he had an ownership interest in the wine. He contended that the court should have either permitted him to sell the wine or ordered the sheriff’s office to sell it, with any proceeds applied to his restitution obligation. Disposition of the wine was governed by the restitution agreement, which expressly provided for the destruction of the wine if Madison failed to both pay the restitution and pick up the wine within 90 days. Because Madison failed to meet that deadline, the sheriff’s office had the right to dispose of the wine without seeking approval from the court or notifying Madison. Further, the agreement did not give Madison the right to determine the particular disposition of the wine or to demand that any proceeds from the disposition be distributed to the victims and then applied to reduce his restitution balance.

Madison also contended that the agreement gave him an ownership interest in the wine, notwithstanding his failure to satisfy its requirements, based on the Uniform Commercial Code (UCC) and conversion principles. Disposition of the stolen property is governed by the agreement, not by the UCC or conversion principles. Madison had a right to obtain the property only upon satisfaction of conditions precedent, which he failed to satisfy.

The Colorado Court of Appeals issued its opinion in People v. Butcher on Thursday, April 19, 2018.

Restitution—Post-Judgment Interest—Crim. P. 52(b)—Plain Error.

A jury convicted Butcher of two counts of securities fraud and two counts of theft from at-risk adults, and he was ordered to pay restitution.

On appeal, Butcher argued that the trial court erred in its award of prejudgment and post-judgment interest in its amended restitution order. The court of appeals reviewed the appeal for plain error and found that the trial court erred by calculating post-judgment interest from the date of conviction rather than from the date of the operative restitution order. However, although this error was obvious, it did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.

The court exercised its discretion under Crim. P. 52(b) and affirmed the order.

In 2007, the Bureau of Land Management (BLM) closed part of Recapture Canyon in Utah to all-terrain vehicles (ATVs) due to potential damage to the soil and archaeological sites. Although this was intended to be temporary, the order was still in place in 2014. Upset at the delay in reopening, County Commissioner Lyman organized a protest ride on ATVs into the closed portion of the Canyon. Wells, who ran a website that reported on local news, assisted and interviewed Lyman, while also encouraging others to the protest. Despite warnings from the BLM that criminal and civil penalties would be enforced against anyone riding ATVs in the closed portion of the Canyon, the ride took place in May of 2014. There is undisputed evidence that both Lyman and Wells rode ATVs in the protest.

At trial, Lyman and Wells were found guilty for riding ATVs on the closed lands and with conspiracy to do the same. On appeal, Defendants seek a new trial, arguing that a reasonable observer would have questioned the district judge’s impartiality. Although the judge did ultimately recuse before sentencing, Defendants contend he should have recused earlier. Further, they challenge the denial of their motions to dismiss the criminal information, the denial of a new trial, and their restitution order. Lyman separately argues that he was deprived of effective assistance of counsel. The Tenth Circuit addressed each claim in turn.

The first argument was that the district court judge, Judge Shelby, should have recused earlier in the trial. Judge Shelby is close friends with the legal director for the Southern Utah Wilderness Alliance (SUWA), an organization that was opposed to the protest ride. The ultimate recusal was based largely on a letter to the judge signed by SUWA and other conservative groups that expressed views adverse to Defendants, as well as evidence that showed SUWA had extensive pretrial involvement with the case in passing information to BLM officials and the United States Attorney’s Office.

Defendants argued for a new trial, contending that Judge Shelby ought to have recused from participation in the trial because a reasonable observer would have questioned his impartiality, as Judge Shelby should have been alerted to SUWA’s involvement by their legal director’s presence at trial and by a voir dire question asking potential jurors if close friends or family members were in SUWA.

The Tenth Circuit found that the argument for a new trial failed on the merits. The Circuit reviewed Judge Shelby’s decision not to recuse early in the trial for an abuse of discretion and found that the decision not to recuse could not be characterized as arbitrary or manifestly unreasonable. The Tenth Circuit concluded that recusal was not required where SUWA was not a party to the criminal prosecution, and, further, there was no evidence that Judge Shelby should have known about SUWA’s pretrial involvement. As Judge Shelby did not err in failing to recuse, Defendant were not entitled to a new trial.

The Defendants next challenged the denial of their motions to dismiss. Wells claimed that he could not be prosecuted for his activities because they consisted of protected speech under the First Amendment. To determine whether Wells’ conduct was protected, the Tenth Circuit inquired as to whether there was a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for the hostility toward the defendant because he exercised his specific legal rights.

Wells argued that the prosecution’s hostility became evident when showings were made that SUWA had pushed for prosecution of the Canyon riders and that they regularly passed Wells’ social media posting on to prosecutors. However, the Tenth Circuit found that Wells did not present any evidence of prosecutorial hostility toward Wells’ exercise of his First Amendment rights. SUWA was simply interest in protecting the Canyon, not in limiting Wells’ First Amendment rights. The Circuit held that Wells failed to establish the requisite vindictiveness from the prosecution.

Lyman argued that the district court erred in denying his motion to dismiss when the government failed to allege interdependence, a required element of conspiracy. The Circuit applied a two-part test to determine the sufficiency of an indictment: First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet; second, it must be such as to show to what extent he may plead a former acquittal or conviction as a bar to further prosecution for the same cause. The Tenth Circuit found that Lyman’s argument implicated only the first prong of this test. Further, Lyman and Wells worked together for their mutual benefit in the context of their conspiracy to ride ATVs on the Canyon in protest. The Tenth Circuit found that Lyman’s motion to dismiss argument failed.

Next, Wells argued that the government failed to introduce sufficient evidence that he was acting as a co-conspirator rather than a journalist. The Tenth Circuit inquired whether the evidence would establish each element of the crime of conspiracy, to wit: (1) an agreement, (2) to break the law, (3) an overt act, (4) in furtherance of the conspiracy’s object, and (5) proof that the defendant willfully entered the conspiracy. The Circuit found that the evidence presented by the government was sufficient for a jury to find beyond a reasonable doubt that Wells acted not merely as a journalist reporting on issues, but as a co-conspirator who agreed with Lyman to ride on the closed lands. More specifically, Wells reposted Lyman’s advertisements of the protest ride while adding flourishes of his own that suggest active support for, and agreement with, the planned ride.

Defendants next contested the district court’s denial of their motion for a new trial based on the post-trial discovery of a map which allegedly showed a right-of-way that the government failed to disclose before trial. Defendants argued that (1) the map would have permitted them to establish the existence of a right-of-way to negate the legality of the closure order on the Canyon, and (2) they should have been able to present the map as evidence relevant to their good-faith defense, since violation of the laws at hand require that the defendant act knowingly and willfully. The government argued that no violation occurred because the map in question was not material.

The Circuit found that the materiality of the map was at issue in this appeal. Materiality requires a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed. The Tenth Circuit concluded that the map could not have been material for purposes of the Defendants’ good-faith defense, and, as the district court pointed out, the map could not be relevant because the Defendants were unaware of the map at the time of the ATV ride. A mere suspicion that a right-of-way existed is not an honest belief that the road was not legally closed to ATV use. The Tenth Circuit found that the Defendants could not establish that the map would have been material to their good-faith defense. Further, the map failed to create a reasonable probability of a different outcome so as to cast doubt on Defendants’ convictions. The Circuit held that the district court properly denied Defendants’ motion for a new trial.

Wells next challenged the restitution order holding him jointly and severally responsible with Lyman for $48,000. Wells challenged that it included: (1) harms that were not recoverable as restitution because they were not caused by the conspiracy and its underlying conduct, and (2) amounts that were not legally cognizable as actual loss or supported by the evidence. Lyman made a similar argument. Under the Mandatory Victims Restitutions Act (MVRA), courts are required to order a defendant to pay restitution to a victim of the offense. No party disputed that the United States constituted a victim under the MVRA; however, the question was for which alleged harms could the United States properly recover restitution. The government was required to show both that the defendant’s conduct was the ‘but-for’ cause of the harm and that the defendant proximately caused the harm.

The government’s principal contention was that the conspiracy and its underlying conduct was the but-for cause of the motorized damage to archeological, riparian, and upland soil resources in the closed area. The Tenth Circuit concluded that the government presented ample evidence to find by a preponderance of the evidence that the government’s contention was correct. The district court did not err in ruling that Defendants were responsible for paying restitution to the United States for damages stemming directly and proximately from Defendants’ unlawful conspiracy to conduct a protest ride.

Next, Defendants challenged three aspects of the total amount of restitution ordered: (1) that the amount spent assessing the damage caused by the ATV ride was disallowed, speculative archeological expenses; (2) that the assessment costs were not incurred during participation in the investigation or prosecution of the offense; and (3) that at least some of the claimed amount was supported by estimates, not concrete figures. The Tenth Circuit first found that the government’s requested damages did not constitute speculative, archaeological damages. The archaeological value is an effort to go back in time before the violation occurred and estimate what it would have cost the United States to engage in a full-blown archaeological dig at the site, notwithstanding the fact that the United States had no plans to engage in any such effort. The Circuit held that the assessment that took place was detailed and anything but hypothetical.

Second, the MVRA provides that a victim must be reimbursed for expenses incurred during participation in the investigation or prosecution of the defense. The Tenth Circuit rejected Defendants’ assertion that the expenses were not incurred during the government’s participation in the investigation or prosecution of the offense, as the court has specifically recognized that the government’s investigatory costs can constitute actual losses subject to restitution.

Third, the Circuit concluded that the third argument was based on a mistaken view of the record. The government did not admit that its damages were not hard numbers. In context, the prosecutor was attempting to explain why restitution figures from an earlier case could not be considered as a basis for comparison in the present case. The Circuit found Defendants’ final argument misguided and spurious. The district court’s restitution award was upheld.

The last argument by Lyman was ineffective assistance of counsel. The Tenth Circuit found that ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed. As Lyman made no attempt to argue that his claim should be addressed on direct appeal, the Tenth Circuit saw no reason to reach its merits.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s judgment and restitution order.

A jury convicted defendant of third degree assault. The trial court imposed a two-year jail term and ordered defendant to pay $900 in restitution. Defendant objected to the amount, requesting additional documentation to support the restitution request and a hearing. The court denied the request for additional documentation and granted the hearing request. After an evidentiary hearing, the court upheld its order regarding the restitution amount because defendant failed to offer any evidence rebutting the compensation board director’s testimony.

On appeal, defendant contended that the record did not contain sufficient evidence to support the trial court’s decision to order him to pay $230 in restitution to the compensation board for the victim’s lost wages. C.R.S. § 18-1.3-603(10)(a) creates a rebuttable presumption: once the compensation board has established that it paid a victim a set amount, the defendant has the burden of introducing evidence to show that the amount paid was not the direct result of his criminal conduct. Here, the prosecution proved by a preponderance of the evidence that the victim had lost $230 in wages and that the compensation board had paid that amount to her, and defendant did not rebut the presumption.

Defendant also asserted that the trial court should have conducted an in camera review of the compensation board’s records. Because defendant’s request for an in camera review was speculative and not based on an evidentiary hypothesis, the court did not err in denying defendant’s request for an in camera review.

The Colorado Supreme Court issued its opinion in People v. Belibi on Monday, April 9, 2018.

Sentencing—Restitution.

The People petitioned for review of the court of appeals’ judgment reversing the amended restitution order of the district court, which substantially increased Belibi’s restitution obligation after his judgment of conviction. See People v. Belibi, No. 14CA1239 (Colo. App. May 14, 2015). Following the acceptance of Belibi’s guilty plea, the imposition of a sentence to probation (including a stipulation to $4,728 restitution), and the entry of judgment, the district court amended its restitution order to require the payment of an additional $302,022 in restitution. The court of appeals held that in the absence of anything in the court’s written or oral pronouncements reserving a final determination of the amount of restitution, the initial restitution order had become final and could not be amended. The supreme court affirmed the judgment of the court of appeals. A judgment of conviction, absent a statutorily authorized order reserving a determination of the final amount of restitution due, finalizes any specific amount already set. Therefore, the sentencing court lacked the power to increase restitution beyond the previously set amount of $4,728.

The Colorado Supreme Court issued its opinion in Meza v. People on Monday, April 9, 2018.

Sentencing—Restitution.

Meza petitioned for review of the judgment of the district court (sitting as the court of direct appellate review pursuant to the simplified procedure for county court convictions), which affirmed the county court’s order granting a motion for additional restitution. See People v. Meza, No. 14CV33017 (Denver Dist. Ct. May 15, 2015). The county court ordered the requested additional amount of restitution, finding that the victim had suffered a loss of $936.85 that was not known to the People nor the court at sentencing, when restitution was initially, but not finally, set at $150. On appeal, the district court found that the annotation “RR” on the form guilty plea was sufficient to reserve the final amount of restitution and that the record supported the county court’s finding of an additional loss not known at sentencing; and it therefore affirmed the increase as having been sanctioned by C.R.S. § 18-1.3-603(3)(a). The supreme court reversed the district court’s judgment and remanded the case to the district court with directions to order reinstatement of the $150 restitution order entered prior to judgment of conviction. A judgment of conviction, absent a statutorily authorized order reserving a determination of the final amount of restitution, finalizes any specific amount already set. Because the court ordered no reservation in this case, it lacked the power to increase the amount of restitution it had previously set.

The Colorado Court of Appeals issued its opinion in People v. Joslin on Thursday, February 22, 2018.

Criminal Procedure—Postconviction Motion—Restitution—Interest.

After entering into plea agreements, defendant was sentenced to 92 years to life in the custody of the Department of Corrections and ordered to pay over $14,000 in fees and $1,520 in restitution. When defendant did not pay the restitution within a year, he was charged interest on that unpaid restitution pursuant to C.R.S. § 18-1.3-603(4)(b). He then filed two nearly identical Crim. P. 35(c) motions, alleging that in each case he was never told that he would be charged interest on unpaid restitution. He claimed that he would never have pleaded guilty if he had known he would have to pay interest. The district court denied the motions without a hearing.

On appeal, defendant contended that he was entitled to postconviction relief because either the district court or his counsel (or both) was required to tell him that he would be required to pay interest on unpaid restitution and they failed to do so. Interest on unpaid restitution is a collateral consequence of a plea and neither the district court nor defendant’s counsel had a duty to advise defendant of this possibility. Therefore, defendant’s postconviction allegations, even if true, do not warrant relief, and the district court did not err in denying defendant’s motion without a hearing.

This case required the supreme court to determine whether the district court had the authority to continue to collect unpaid restitution, court costs, and fees ordered as conditions of petitioner’s deferred sentence after the completion of that deferred sentence. The court concluded that the district court may collect any unpaid restitution from petitioner after the completion of her deferred sentence, until the restitution has been paid in full. With respect to the unpaid fees and costs, however, the court concluded that the district court lacked the authority to collect such unpaid amounts after it terminated petitioner’s deferred sentence, withdrew her guilty plea, and dismissed her case with prejudice. Accordingly, the court affirmed the district court’s orders in part and reversed in part.

Stanley’s automobile insurer, Geico Indemnity Co. (Geico), entered into a “Release in Full of All Claims” (release) with the victim and her husband. Under the settlement, Geico paid the victim $25,000 for all claims related to and stemming from the accident in exchange for a full and final release of all claims against Stanley and Geico. Thereafter, Stanley pleaded guilty to felony vehicular assault, driving under the influence, and careless driving. The prosecution filed a motion to impose restitution and attached a report from the Crime Victim Compensation Program (CVCP). It showed that the CVCP had paid the victim $30,000, the maximum amount allowable by statute, for pecuniary losses proximately caused by Stanley’s criminal conduct. The Court awarded Stanley a $25,000 setoff against restitution for the amount paid by Geico, and ordered him to pay the $5,000 net amount.

On appeal, the prosecution argued that Stanley should not receive a setoff for the settlement funds because the release was an unapportioned settlement that did not “earmark” the proceeds for the same expenses compensated by the CVCP, leaving open the possibility that the victim used the proceeds for losses not compensated by the CVCP. When a victim receives compensation from a civil settlement against a defendant, the defendant may request a setoff against restitution “to the extent of any money actually paid to the victim for the same damages.” For purposes of a setoff, however, the court cannot allocate proceeds from an unapportioned civil settlement agreement without “specific evidence that the settlement included particular categories of loss,” because in civil cases victims may recover both pecuniary losses covered by the restitution statute and other damages specifically excluded under the restitution statute. Because the information needed to determine whether a victim has been fully compensated or has received a double recovery is known only by the victim, once a defendant has shown that a civil settlement includes the same categories of losses or expenses as compensated by the CVCP and awarded as restitution, the defendant has met his burden of going forward, and the prosecution may then rebut the inference that a double recovery has occurred. Here, Stanley met his burden of proving a setoff, but the victim may have used some or all of the settlement proceeds for losses not compensated by the CVCP.

The order was affirmed, and the case was remanded to permit the prosecution to show that the victim did not receive a double recovery from the settlement proceeds and the CVCP payment.

In this consolidated opinion, the supreme court addressed whether sexual offenders must shoulder the cost of their victims’ forensic medical examinations as criminal restitution. By statute, such restitution may include “extraordinary direct public . . . investigative costs.” The court therefore considered whether the cost of a sexual assault nurse examiner (SANE) examination is “extraordinary” for purposes of the statute. As both a medical and investigative response to a sexual offense, these examinations necessarily perform dual roles. The court concluded that the hybrid nature of these exams renders them, and their resulting costs, extraordinary. It further concluded that the state may therefore recover those costs as restitution.

The Colorado Court of Appeals issued its opinion in People v. Perez on Thursday, April 20, 2017.

Restitution—Vacation—Sick Leave—Proximate Cause—Pecuniary Loss.

Perez pleaded guilty to leaving the scene of an accident resulting in serious bodily injury. After the court sentenced Perez, the prosecution requested restitution based on the victim missing 55 days of work after the accident, including use of vacation and sick leave. Perez argued that the victim’s expenditure of leave was not compensable and that he was not the proximate cause of the victim’s losses because he pleaded guilty to leaving the scene of an accident resulting in serious bodily injury but not to any crime establishing that he was the proximate cause of the victim’s injury. The district court held that Perez was the proximate cause of the victim’s losses and ordered restitution.

On appeal, Perez claimed that the district court erred in holding that his actions were the proximate cause of the victim’s injuries because it did not make an express finding on the issue. The court’s rejection of Perez’s proximate cause contention necessarily implied that it found Perez to be the proximate cause of the victim’s injuries, and the record supports that finding. The conduct underlying the charge of leaving the scene of an accident resulting in serious bodily injury was Perez hitting the victim with his car. The crime for which Perez pleaded guilty arose from acts that injured the victim. Therefore, there was no error in this finding.

Perez next contended that vacation and sick leave are not compensable under the Restitution Act (the Act) because the loss of leave is not a pecuniary loss. The court of appeals concluded that expenditure of vacation and sick leave is a loss of employee benefits comparable to lost wages that is compensable under the Act.

Lastly, Perez contended that the court erred in calculating his restitution to the victim by five work days. The award of an additional five days of missed work was not supported by the record and results in a windfall to the victim, and must be reduced.

The order was affirmed in part and the case was remanded for reduction of the restitution award.

During an altercation at City Park, defendant pulled a gun and fired it in the direction of a group of people. One of the shots struck a nearby Denver police officer in the head and killed her. Defendant pleaded guilty to second degree murder. The district court sentenced him and ordered him to pay restitution to the Risk Management Department of the City and County of Denver (Department) in the amount of $365,565.07 for medical costs and survivor benefits resulting from the officer’s death. Defendant filed a Crim. P. 35(a) motion to correct the award as an illegal sentence. After a hearing, the court denied the motion and reaffirmed the award.

On appeal, defendant contended that the Department was not a “victim” for purposes of restitution. The Denver Police Department (DPD) is an agency of the City and County of Denver. The Department acted as the workers’ compensation insurance company for the DPD and the City and County of Denver as a whole. Because the Department was an insurer who had a contractual relationship with the deceased officer, it fits squarely within the definition of a victim insurer under the restitution statute. The district court did not err in concluding that the Department was a victim of defendant’s crime for purposes of restitution.

Alternatively, defendant contended that even if the Department was a victim under the restitution statute, the amount of restitution ordered by the district court was not authorized by law because the death benefits constituted “loss of future earnings,” which is specifically excluded from the statutory definition of restitution. The death benefits paid by the Department were calculated using the deceased employee’s average weekly wage but are not equivalent to “loss of future wages.” Rather, the payments were more properly considered the Department’s “out-of-pocket expenses” and “anticipated future expenses,” both of which are included in the statutory definition of restitution. Accordingly, the district court did not err in awarding the restitution.

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